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22. The memoranda should be
Plaza Hotel sued Plaza House Hotel for infringement of its trade name. To establish a likelihood of name confusion, plaintiff Plaza Hotel offers a series of memoranda which it had asked its employees to prepare at the end of each day listing instances during the day in which telephone callers, cab drivers, customers, and others had confused the two names.
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A record (e.g., memorandum, report, data compilation) of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if: (i) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling; (ii) the making of the record was a regular practice of that activity; and (iii) the record was made at or near the time by (or from information transmitted by) someone with knowledge. Although this exception is commonly referred to as the «business records» exception, it extends to any regularly conducted activity of an organization. Fed. R. Evid. 101(b)(4); 803(6)(A)-(C).
FRE 803(5) recognizes a hearsay exception for a past recollection recorded, which is «a record that (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness's memory; and (C) accurately reflects the witness's knowledge.
B is correct. The memoranda contain statements that were made outside of court, and they are being offered for the truth of the matter asserted: that the confusion around the business name occurred. Because no other hearsay exception applies, the memoranda are inadmissible.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. The memoranda should be excluded under the hearsay rule, but not because they are more prejudicial and confusing than probative. The facts sought to be introduced by the memoranda — that customers and potential customers are confused by the possible trade name infringement — are clearly probative and not unfairly prejudicial. It is because these events are contained in the hearsay memoranda that they are inadmissible.
C is incorrect. The memoranda are not records that were kept in the course of the Plaza Hotel's regularly conducted business activity. The hotel is not in the business of creating memoranda in regards to possible litigation, so the memoranda are not done in the hotel's regular course of business and are inadmissible as hearsay.
D is incorrect. The past recollection recorded exception requires that a witness be testifying and unable to recall well enough to testify fully and accurately about the event. This exception is inapplicable to this case because the memoranda are not being offered through a witness who is unable to fully and accurately testify as to the events.